Employment Court considered tikanga/tikanga values in making decision
A South Island port employee who was fired after refusing to take the COVID-19 vaccine was unjustifiably dismissed by their employer in a case where the Employment Court also considered tikanga/tikanga values.
The court prohibited the plaintiff's name, who was hidden behind the initials GF, as well as their employer, said only to be in the South Island.
As heard by the court, GF was hired as an Assistant Customs Officers Maritime Border (ACOM) in October 2020 as part of New Zealand's efforts to keep COVID-19 at bay.
A mandatory vaccination programme was later rolled out to employees, which GF and four other ACOMs from the same port refused to follow.
"GF was not what was later described as 'vaccine hesitant.' GF did not wish to be vaccinated and did not consider it necessary that their work be performed by a vaccinated worker," the court heard.
Employment termination after vaccine refusal
As a result, GF was given a notice of employment termination - a decision that they raised to the Employment Court claiming that their employer failed to meet the standard required of a fair and reasonable employer in several ways.
GF argued that their employer "failed to appropriately engage" with GF on issues that impacted their employment, as well as carried out and relied on "deficient" health and safety risk assessment that mischaracterised their role.
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The employer also failed to comply with tikanga/tikanga values it "voluntarily imported" in employment relationships with staff and failed to meet its "heightened obligations" under the Public Service Act 2020, according to GF.
The Customs, however, strongly opposed GF's arguments, claiming that it was "entitled to take a cautious approach" to safety amid the pandemic.
The employer also disagreed that the process leading to GF's dismissal was flawed, adding that if there were problems, they were minor and did not result to an unjustified dismissal.
Further, the employer disputed that it was required to meet a higher standard in employment matters, either in having incorporated tikanga/tikanga values or as a public service organisation.
‘Unjustifiably dismissed’ after vaccine mandate
The court sided with the employee in the case, with Employment Court Chief Judge Christina Inglis saying that GF was "unjustifiably dismissed and suffered unjustifiable disadvantage."
Inglis was not satisfied that the Custom's decision to classify GF as a Tier 1 worker was one a fair and reasonable employer could have reached.
"Customs did not act as a fair and reasonable employer in all of the circumstances at the relevant time, and breached its obligations of good faith to GF," Inglis said in her decision.
The chief judge also found that GF learned about the vaccination order a day before it took effect, noting that its meeting with the employee was not made to promote or enable feedback on the mandate.
"Customs did not pause the process, as it should have, to provide an opportunity for GF to consider matters and make submissions," Inglis said.
Tikanga/tikanga values considered in decision
In making her decision, she considered that while tikanga/tikanga values are not incorporated into the Employment Relations Act, Customs has included it in its employment relationship with staff.
"Indeed, the tikanga/tikanga values identified in this case seem to me to sit entirely comfortably with an area of law which is relationship-centric, based on mutual obligations of good faith, and focussed (where possible) on maintaining and restoring productive employment relationships," Inglis said.
The chief judge then awarded GF compensation for breach of good faith and lost wages.
She also recommended to Customs to ensure that it has in place capacity and capability to meet its obligations, and to get appropriate advice and training on the nature and scope of its heightened good employer obligations under the Public Service Act 2020.
She also told Customs to review its communications strategy to enable it to appropriately engage with the full range of employees amid situations such as this.
Inglis' decision overturns a previous ruling from the Employment Relations Authority, which dismissed GF's claims and said Customs acted as a fair and reasonable employer in the circumstances.